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In an opinion released May 6, in the caseAlmeciga v. Center for Investigative Reporting, 15-cv-4319, SDNY Judge Jed S. Rakoff granted a defense motion to exclude proposed expert handwriting analysis testimony, holding that “handwriting analysis in general is unlikely to meet the admissibility requirements of Federal Rules of Evidence 702.” The opinion documents the development of handwriting analysis as a forensic field and its history in the courts before analyzing the Daubert and Kumho Tire factors. See Opinion, 17-43. The Court concludes that handwriting analysis “bears none of the indicia of science and suggests, at best, a form of subjective expertise,” Opinion at 26. “It remains the case,” the Court explains, “that the methodology has not been subject to adequate testing or peer review, that error rates for the task at hand are unacceptably high, and that the field sorely lacks internal controls and standards” and that “as …

In United States v. Jimenez, 15-1624, the Circuit affirmed the District Court’s denial of a reduction in sentence pursuant to 18 U.S.C. 3582. The Circuit held that when the District Court stated that a lower sentence was “foreclose[d]” by the defendant’s participation in four murders, it meant that the original sentence was the minimum sentence necessary in light of Jimenez’s conduct and that the facts of the case did not provide a basis for granting a sentence reduction.…

In United States v. Nastri, 15-489, the Circuit held that the District Court did not err either by declining to dismiss a juror or by applying USSG 4B1.3’s criminal livelihood enhancement, and that the prosecutor’s remarks in summation were not improper.

The juror in question learned from a third party that another juror had been dismissed after seeing the defendant in shackles. The District Court questioned the juror and the juror told the Court that the knowledge she obtained from the third person would not affect her ability to be impartial. On these facts, absent a specific showing of harm, the defendant could not show that his right to a fair trial was prejudiced.

On summation, the prosecutor called certain defense arguments “red herrings” and “distractions.” The defense did not object at the time, so the Circuit reviewed these comments for plain error and, after comparing the comments to …

In United States v. Guerra, 14-1025, the Second Circuit affirmed by summary order the District Court’s methodology for determining the weight of oxycodone prior to sentencing. The District Court’s finding after relying on “documentary medical and telephone records, recorded conversations, and witness testimony regarding the methodology of the scheme” was a permissible view of the evidence and, therefore, not clear error.

The Circuit also rejected Guerra’s argument that the District Court’s reliance on acquitted conduct rendered his sentence unreasonable, holding that it is well-established that a court can rely sentence on the basis of acquitted conduct that is proven by a preponderance of the evidence.…

In United States v. Pendergrass, 15-1965, the Second Circuit affirmed the conviction of Terrence Pendergrass, a former captain at Rikers Island, on one count of willfully violating the constitutional rights of an inmate, who died following the ingestion of cleaning supplies, by refusing to get him medical attention and prohibiting other guards from getting him medical attention. Pendergrass raised three issues: that he received ineffective assistance of counsel at trial, that the District Court improperly instructed the jury regarding willfulness and conscious avoidance, and that his above-guideline sentence was unreasonable.

With respect to the ineffective assistance of counsel claims, the Court declined to consider Pendergrass’s first claim (that Pendergrass’s attorney was ineffective because he failed to call witnesses that would have been material to the defense) because the record with respect to the witnesses’ potential testimony was insufficiently developed to be considered on direct review. The Court did reach …

Lawyers in both districts should be aware of a change in ICE detainer policy. The old so-called “detainer” form (1-247) is being retired and replaced with three different forms. The change in policy is summarized here on the ICE website.

One of the new forms, the I-247N, is a request for voluntary notification of the impending release of a “suspected priority alien”, but it does not request or authorize the continued detention of individuals beyond the point they otherwise would be released. The form says on its face that it does not request or authorize detention. It also says on its face that it should not impact decisions about bail, release, or other matters. Despite these changes, prosecutors and agents may refer to the I-247N as a “detainer” and may argue at a bail hearing that it authorizes your client’s detention.

On Friday, in the EDNY, Magistrate Judge Viktor V. Pohorelsky found that the Adam Walsh Amendments to the Bail Reform Act violate the Due Process Clause of the Fifth Amendment and the Excessive Bail Clause of the Eighth Amendment. The case was United States v. Kim, 16-mj-280 (VVP), and the transcript is available here: Kim_16MJ280_Transcript 4.8.16.

For those charged with crimes involving a minor, Adam Walsh requires the nondiscretionary imposition of specific pretrial release conditions, including electronic monitoring and a curfew, depriving defendants of any opportunity to contest whether such conditions are necessary, and denying judges the ability to make individualized determinations as to the least restrictive bail conditions. In this case, where the defendant is charged with receipt and possession of child pornography, the court found that electronic monitoring was not necessary to assure his appearance or the safety of the community. Judge Pohorelsky ordered that the …

The Second Circuit today issued a summary order affirming the denial of a reduction in sentence under 18 U.S.C. 3582(c)(2) and Amendment 782 to the Sentencing Guidelines. In United States v. Johnson, 15-2051-cr, the Court held that because Mr. Johnson’s guideline range remained 360-life even after Amendment 782, the District Court correctly concluded he was ineligible for a Section 3582(c)(2) reduction. Mr. Johnson’s other arguments related to possible procedural errors in the calculation of his base offense level at his original sentencing were not proper on a motion for a sentence reduction.…

The Office of the Inspector General released this review of BOP medical staffing challenges. According to the March 2016 report, BOP staffing shortages limit inmate access to medical care and impact the safety and security of BOP facilities. The report may be useful at sentencing to demonstrate that the BOP will not provide adequate care for a defendant’s medical condition. Thanks to the folks at the National Sentencing Resource Counsel Project for forwarding the report.…

The Second Circuit today issued a summary order affirming the denial of a motion for a new trial. Unites States v. Jiau, 15-366. On a motion for a new trial based on newly discovered evidence, the defendant bears the burden of establishing “(1) the evidence is genuinely ‘new,’ i.e., it was discovered after trial; (2) the evidence could not, with the exercise of due diligence, have been discovered before or during trial; and (3) the evidence is ‘so material and noncumulative that its admission “would probably lead to an acquittal.”‘” Jiau, at 2. The Court affirmed Judge Rakoff’s denial of a motion for a new trial because the documents submitted in support of the motion were not “evidence” under Rule 33 and, in any case, were not “newly discovered.” Id. at 3.

Yesterday in the SDNY, Judge Lewis A. Kaplan found that the career offender guidelines overstated the seriousness of the offense in a case involving a conviction under 21 U.S.C. 841(b)(1)(C), and that a sentence within the career offender guideline range of 151-188 months would have resulted in a sentence greater than necessary to achieve the statutory sentencing objectives. Instead, Judge Kaplan imposed a sentence within the 30-37 month guideline range that would have applied, under U.S.S.G. 2D1.1, absent the career offender guideline. The case was United States v. John Cole, 15 Cr. 197 (LAK).